IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50949
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIANO GARCIA-TORRES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-01-CR-102-1-FB
--------------------
June 19, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Mariano Garcia-Torres appeals the sentence imposed following
his guilty plea conviction of being found in the United States
after deportation in violation of 8 U.S.C. § 1326. Garcia-Torres
complains that his sentence was improperly enhanced pursuant to
8 U.S.C. § 1326(b)(2) based on his prior deportation following an
aggravated felony conviction. Garcia-Torres argues that the
sentencing provision violates the Due Process Clause because it
permitted the sentencing judge to find, under a preponderance of
the evidence standard, a fact which increased the statutory
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-50949
-2-
maximum sentence to which he otherwise would have been exposed.
Garcia-Torres thus contends that his sentence is invalid and
argues that it should not exceed the two-year maximum term of
imprisonment prescribed in 8 U.S.C. § 1326(a).
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Garcia-Torres acknowledges that his argument is foreclosed by
Almendarez-Torres, but asserts that the decision has been cast
into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
He seeks to preserve his argument for further review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001). This court
must follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984
(internal quotation marks and citation omitted). The judgment of
the district court is AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that the judgment of the district court be affirmed and that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.